Law, History, and Memory: “Republican Moments” and the Legitimacy of Constitutional Review in France

3 Colum. J. Eur. L. 49 (1996)

Peter L. Lindseth. Associate in Law, Columbia University School of Law. B.A., J.D., Cornell; M.A., M.Phil., Ph.D. candidate (history), Columbia; research fellow, French Conseil d’ État, 1994-95.

[A] legislative phenomenon is taking place in our time that we do not yet grasp very well because we are close to it, but as time gives us perspective, we shall see it in all its clarity: a phenomenon of differentiation that is destined to segregate those laws that are fundamental from those that are not.
– Maurice Hauriou (1912). Notes on Decisions of the Conseil d’ État. The Tichit Case, in THE FRENCH INSTITUTIONALISTS: MAURICE HAURIOU. GEORGES RENARD, JOSEPH T. DELOS 81 (Broderick ed. 1970).

Twenty-five years ago, the French Constitutional Council initiated what was, for France, an extraordinary experiment. In its celebrated decision of July 16, 1971, the Council struck down as unconstitutional an amendment to the law governing private associations, known according to French custom by its date of passage: the “law of July 1, 1901.”2 Never before had the Constitutional Council struck down a piece of legislation – particularly one introduced by the Government – for a purported violation of a constitutionally protected right (in this case, the freedom of association). Indeed, before 1958 no institution external to the legislature had the power of constitutional review,3 and between 1958 and 1971 the Constitutional Council exercised its newly established review powers with extreme caution. This reticence was arguably consistent with the intent of the Gaullist drafters of the Constitution of 1958, who thought the primary function of constitutional review was to assure that the balance of power among the legislature and the executive would remain tipped decisively in the executive’s favor.

The Council’s 1971 decision thus brought to an end France’s Rousseauian tradition of legislative supremacy and national sovereignty theoretically represented by Parliament. The old Rousseauian formula that had inspired the revolutionaries of 1789 – that the law is the unassailable expression of the “general will’” – had now given way to a modern, constitutionalist  reformulation: “The law expresses the general will only when it respects the Constitution.” With the 1971 decision and decisions subsequent, the French Constitutional Council has effectively created a French “Bill of Rights” – the so-called bloc de constitutionalité – which now serves as a limit on legislative power.